I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Daniel G. Collins filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that a grievance challenging the Agency's ranking of candidates for a non-bargaining unit position was not arbitrable because the parties' collective bargaining agreement excludes grievances concerning employees or positions outside the unit from the negotiated grievance procedure. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we denythe Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance asserting that the Agency violated the parties' agreement by its ranking of candidates for the position of grants management specialist, a position that is not in the bargaining unit represented by the Union. The grievance was submitted to arbitration where, as relevant here, [n1]the Agency argued that the grievance was not substantively arbitrable based on Article 1, Section 2 of the parties' agreement. [n2] The Arbitrator framed the issue as "whether the Union's claim that the Agency violated Article 3 of the [parties' agreement] is arbitrable?" [n3] Award at 3.

The Arbitrator determined that the grievance was not substantively arbitrable. The Arbitrator found, in a brief award, that the parties' "contractual situation" was "essentially similar" to that in Illinois Air National Guard, 182nd Tactical Air Support Group and the Association of Civilian Technicians, Illinois Chapter 34, 34 FLRA 591 (1990) (National Guard), where, according to the Arbitrator, the "arbitrator . . . found a grievance protesting a supervisory promotion to be non-arbitral, and the Authority sustained him." Award at 6. The Arbitrator found nothing in U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and American Federation of Government Employees, Local 1974, 36 FLRA 183 (1980) (Lowry), which was relied on by the Union, "to the contrary." Award at 6.

III. Positions of the Parties

A. Union's Exceptions

The Union argues that the award fails to draw its essence from the parties' agreement. The Union contends, in this connection, that the parties' agreement is "susceptible to an interpretation" that would render the grievance arbitrable and, consistent with United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) (Warrior & Gulf), "doubts concerning arbitrability [should] be determined in favor of arbitrability." Exceptions at 2. According to the Union, the Arbitrator failed to interpret Article 1, Section 2 of the parties' agreement in the context of the article as a whole, and also failed to apply the contract interpretation principle that "give[s] precedence to the specific article over the general article." Id. at 3. The Union points out that the specific provisions in the parties' agreement that address the scope of the grievance procedure and merit promotion do not exclude grievances over non-unit positions. Further, the Union contends [ v56 p481 ] that, in light of the Authority's decision in Lowry, it is "inconceivable" that the parties' would have agreed to exclude the grievance in this case from the scope of the grievance procedure. Id. at 4. According to the Union: (1) Lowry holds that unit employees "must have access to either the Agency or negotiated grievance procedure to grieve improper selections for supervisory positions[,]" and (2) unit employees are excluded from the Agency's grievance procedure by Agency regulation. [n4]Id.

The Union also argues that the award is inconsistent with law and regulation. With regard to regulation, the Union asserts that, under 5 C.F.R. § 771.104(a), unit employees have a right to use either negotiated or Agency grievance procedures. According to the Union, unit employees are excluded from the Agency's grievance procedure by Agency regulation. Therefore, the Union argues, they must have access to the negotiated grievance procedure, and by holding to the contrary, the award is inconsistent with the regulation. With respect to law, the Union contends that the only mandatory exclusions from the scope of the parties' grievance procedure are set forth in section 7121(c) of the Statute and that further exclusions are a permissive subject of bargaining. The Union claims, therefore, that it is not bound by any agreement to exclude the grievance in this case from the scope of the grievance procedure because the parties' agreement expired before the grievance was filed.

B. Agency's Opposition

The Agency argues that the Arbitrator properly interpreted and applied Article 1, Section 2 to find that the grievance is not arbitrable. The Agency asserts, in this connection, that the Arbitrator's failure to mention specific provisions of the parties' agreement does not render the award deficient.

The Agency contends that the Union's argument that the award conflicts with 5 C.F.R. § 771.104(a)(2) must be rejected because that regulation is no longer in effect. The Agency also asserts that the award is not contrary to law because, after the parties' agreement expired, the scope of the grievance procedure contained in the agreement must be maintained until the agreement is renegotiated.

IV. Analysis and Conclusions

A. The award draws its essence from the parties' collective bargaining agreement.

In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. SeeUnited States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

The Arbitrator concluded, based on Article 1, Section 2 (set forth at note 2) that the Union could not grieve under the negotiated grievance procedure "matters concerning employees or positions outside of the bargaining unit." [n5]Award at 6.

The Union contends that in view of the Authority's decision in Lowry, it is "inconceivable" that the Union would have agreed to exclude the grievance in this case from the scope of the grievance procedure. Exceptions at 4. In Lowry, the Authority found that the agency violated section 7116(a)(1) and (2) of the Statute by maintaining an agency regulation that precluded employees who were members of a bargaining unit and covered by a collective bargaining agreement from utilizing the agency's administrative grievance procedure regarding matters not covered by the negotiated grievance procedure. While, under Lowry, an agency is not permitted to exclude unit employees from agency procedures with respect to matters that are not covered under a negotiated [ v56 p482 ] procedure, this does not mean that parties could not or would not agree to an exclusion from the negotiated grievance procedure. [n6]

In addition, the Union's reliance on Warrior & Gulf is misplaced because the Authority has long held that parties may agree to exclude any matter from the scope of their negotiated grievance procedure. SeeIndian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas, Albuquerque, New Mexico, 53 FLRA 352, 361 (1997); U.S. Naval Air Station, Kingsville, Texas and American Federation of Government Employees, Local 1735, 35 FLRA 841, 842 (1990). Further, the Authority has long applied an essence analysis to disputes over an Arbitrator's interpretation of purely contractual exclusions to the scope of negotiated grievance procedures. CompareNational Treasury Employees Union, Chapter 260 and Federal Deposit Insurance Corporation, Southwest Field Office, Addison, Texas, 52 FLRA 1533, 1537-38 (1997) (Authority applied an essence analysis where the exclusion was contractual); Federal Deposit Insurance Corporation, Division of Depositor And Asset Services, Oklahoma City, Oklahoma and National Treasury Employees Union, Chapter 256, 49 FLRA 894, 900-01 (1994) (same), withNational Federation of Federal Employees, Local 2010 and U.S. Department of Agriculture, Forest Service, Rogue River National Forest, 55 FLRA 533, 534-35 (1999) (Authority applied a contrary-to-law analysis where the contractual exclusion restated a statutory one).

Based on the foregoing, we find that the Arbitrator's award does not fail to draw its essence from the parties agreement.

B. The award is not contrary to regulation.

The Authority reviews the questions of law raised by the award and the Agency's exceptions denovo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of denovo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. Id.

The Union asserts that the award is contrary to 5 C.F.R. § 771.104(a)(2)(ii). However, as the Agency asserts, section 771.104(a)(2)(ii) is no longer in effect. The Office of Personnel Management abolished 5 C.F.R. part 771, which related to agency administrative grievance systems, on September 11, 1995. See Agency Administrative Grievance System, 60 Fed. Reg. 47,039 (1995). As such, the Union's exception provides no basis for finding the award deficient. SeeNational Treasury Employees Union, Chapter 231 and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 598 (1995).

C. The award is not contrary to law.

The Union argues that the scope of a negotiated grievance procedure is a permissive subject of collective bargaining, and, therefore, because the parties' agreement expired before the grievance was filed, the Union is not bound by any agreement to exclude the grievance in this case from the scope of the grievance procedure. However, the Authority has held specifically, and the U.S. Court of Appeals for the District of Columbia has affirmed, that the scope of a negotiated grievance procedure is a mandatory subject of collective bargaining. SeeVermont Air National Guard, Burlington, Vermont and Association of Civilian Technicians, Inc., 9 FLRA 737, 740-41 (1982); see alsoAmerican Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640, 646 n.27 (D.C. Cir. 1983) (AFGE, Locals 225, 1504 and 3723). In this connection, the legislative history relied on by the Union in this case to support its contention was rejected by the court because the comments were made "one day after the Act was signed into law [and] [i]t is settled that courts construing statutory language should give little weight to post-enactment statements by members of Congress." AFGE, Lo